Mohd Zhafri Bin Aminurashid v Roslinda Binti Abd Latip (BA-23CY-6-10/2020)

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1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM 1 DALAM NEGERI SELANGOR DARUL EHSAN 2 (GUAMAN SIVIL NO: BA-23CY-6-10/2020) 3 4 ANTARA 5 6 MOHD ZHAFRI BIN AMINURASHID 7 (No. K/P : 860325-56-6011) ...PLAINTIF 8 9 DAN 10 11 ROSLINDA BINTI ABD LATIP 12 (No. K/P : 820406-10-5544) ...DEFENDAN 13 14 15 GROUNDS OF JUDGMENT 16 17 18 Introduction 19

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(1) This is the Plaintiff’s claim for damages against the Defendant for 20 alleged defamatory statements against him that the latter had posted on 21 her Facebook account. 22 23 The Parties 24

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(2) The Plaintiff is a lawyer by profession and practises as a partner in 25 the law firm Messrs Fahmi, Zhafri Ashraf & Co. He is also a director of a 26 company known as Rufeikh Resources Sdn Bhd. 27 S/N v0OqK7iykim6i5EdroWkA

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(3) The Defendant is the wife of one of the directors of a company 1 known as G Bersatu Solution (M) Sdn Bhd (‘G Bersatu’). She is also an 2 admin staff and is in charge of accounts of the company. 3 4 The Alleged Defamatory publication 5

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(4) In the Defendant’s Facebook post dated 19.9.2019 at 9.56 pm under 6 the account ‘Lynn Milynda Abd Latip’ she wrote : 7 8 “Bila aku tengok muka mamat lawyer ni cam nak hempuk jer…Dr awal 9 lg kau dh menipu…Aku layankan jer…Tgk cara lawyer yg tau undang- 10 undang bila bercakap…Aku simpan sini sbb aku nak clearkn dlm 11 galeri…Penuh sgt dh…Tepeklh kt sini bg korg baca klu rajin…Ni semua 12 bukti utk aku bwk ke lawyer yang amik kes nk saman lawyer jahanam 13 ni…Klu sesape friend dlm fb ni yg kenal…Tlg maklum kn kt dia ye…Aku 14 mg tgh tggu dia merayu-merayu…” 15 16

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(5) Together with the above impugned words, the Defendant posted a 17 screenshot of a particular WhatsApp conversation between her and the 18 Plaintiff. This WhatsApp conversation is juxtaposed with a photograph of 19 the Plaintiff’s profile together with his name ‘Zhafri Aminurashid’ 20 underneath. 21 22

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(6) 3 days later on 22.9.2019 the Defendant posted another statement 23 on her Facebook page as follows : 24 25 “Fitnah??? Terkejut nya kau…Lawyer ni boleh wsap aku…selepas aku 26 viralkan…igt dh x wujud…Tq pd yg tlg sampaikan…Ko lawyer x yh acah- 27 acah nk ugut aku, nk saman aku bagai… Aku xkn ada rasa hormat lg kt 28 ko…Nk saman, saman jer…Aku xkan lari k…x mcm ko…Aku ckp bnda 29 yg btl…Xder masa aku nk fitnah-fitnah ko ehhh…Byk keje lain lagi aku 30 nk buat…Hahaha” 31 S/N v0OqK7iykim6i5EdroWkA Salient Background Facts 1

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(7) On behalf of Rufeikh Resources Sdn Bhd (Rufeikh Resources), the 2 Plaintiff as director had on 4.5.2018 signed a Sale and Purchase 3 Agreement (‘the said Agreement’) with G Bersatu to sell and supply Gula 4 Prai. 5 6

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(8) Clause 4(a) of the said Agreement provides that G Bersatu will pay 7 a deposit of RM80,000 to the Rufeikh Resources and in return Rufeikh 8 Resources company will supply Gula Prai to G Bersatu. Clause 4(b) 9 stipulates that the balance of the purchase price is to be made as per 10 order and to be paid on the same day of delivery. 11 12

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(9) On 7.5.2018 G Bersatu deposited the sum of RM80,000 into the 13 Plaintiff’s company account. On 19.5.2018, 18 pallets of Gula Prai were 14 delivered to G Bersatu. It is the contention of the Defendant that it was an 15 agreed term of the agreement that G Bersatu was obliged to pay 16 RM80,000 as deposit and Rufeikh Resources was obliged to deliver 40 17 pallets of gula prai to them. There was a failure to deliver the remaining 18 pallets of Gula Prai despite several reminders. The Defendant was 19 instructed by the directors of G Bersatu to contact and follow up with the 20 Plaintiff with regard to the delivery of the remaining pallets of gula prai 21 and/or to seek a refund for the undelivered sugar. 22 23

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(10) The Defendant and the Plaintiff at first exchanged numerous 24 messages via WhatsApp in order to resolve the matter. At first the 25 messages exchanged were cordial but gradually turned accusatory and 26 harsh on the part of the Defendant until the Plaintiff resorted to blocking 27 the Defendant’s telephone number and the Defendant found that she 28 S/N v0OqK7iykim6i5EdroWkA could no longer contact the Plaintiff via WhatsApp or by short messaging 1 system. 2 3

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(11) The Defendant looked up the contact number of the Plaintiff’s law 4 firm and contacted one of the partners in the Plaintiff’s firm. The Defendant 5 conveyed her message to the Plaintiff through that partner, advising the 6 Plaintiff to contact her to resolve and settle the amount owing to G Bersatu 7 or risk having her post his photograph and their issue on social media. 8 When the Plaintiff still refused to communicate with her, the Defendant 9 made good her threat and proceeded to upload the said impugned 10 postings on her Facebook account. 11 12

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(12) The Plaintiff thereafter contacted her and notified her that he would 13 sue her for the defamatory postings. 14 15

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(13) The Plaintiff contended that the words and the contents caused to 16 be published by the Defendant in the impugned Facebook post in their 17 natural and ordinary meaning were meant and understood to be 18 defamatory of him namely : 19 a) that he was a dishonest unethical and untrustworthy lawyer 20 and person; 21 b) that he was a dishonest and corrupt businessman and 22 entrepreneur; 23 c) that the Plaintiff is not a fit and proper person to practice in his 24 profession as a lawyer and/or businessman; 25 d) that the Plaintiff is unreliable and untruthful; 26 e) that he ran his business only to cheat and to scoop up unlawful 27 profits for his own gain and did not give good service in return; 28 S/N v0OqK7iykim6i5EdroWkA f) that the service provided by the Plaintiff was unsatisfactory 1 and the public was advised to avoid the Plaintiff and not use 2 his service; and 3 g) that the public should avoid conducting any business with the 4 Plaintiff as he was a dishonest and corrupt individual. 5 6

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(14) The Plaintiff then issued a letter of demand dated 24.11.2019 to the 7 Defendant demanding that the Defendant issue an apology to the Plaintiff 8 immediately as well as to take down the impugned postings on her 9 Facebook. 10 11

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(15) The Defendant failed and/or refused to apologize to the Plaintiff. The 12 Plaintiff then filed this civil suit on 15.10.2020 against the Defendant 13 claiming for the following relief :

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(16) In an action for defamation, the burden of proof lies on the Plaintiff 27 to prove these 3 basic elements : 28 S/N v0OqK7iykim6i5EdroWkA

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(1) the words or statements as contained in the Facebook posting 1 are defamatory;

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(2) the words or statements in the Facebook posting refer to the 3 Plaintiff; and 4

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(3) the words or statements as contained in the Facebook posting 5 were published to a third party. 6 7 (see Ayob bin Saud v TS Sambanthamurthi [1989] 1 MLJ 315, Raub 8 Australian Gold Mining Sdn Bhd v Hue Shieh Lee [2019] 3 MLJ 720, 9 Datuk Seri Anwar bin Ibrahim v. Wan Muhammad Azri bin Wan Deris 10 [2014] 1 LNS 662) 11 12

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(17) Only upon successfully proving all of the above on a balance of 13 probabilities does the burden shift to the Defendant to prove her pleaded 14 defence. 15 16 Whether the words or statements as contained in the Facebook 17 posting are defamatory.

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(18) The essence of the Plaintiff’s claim against the Defendant is that the 19 postings uploaded by the Defendant in her Facebook page are 20 defamatory of the Plaintiff. 21 22

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(19) The question now for consideration is whether the impugned 23 Facebook postings are indeed defamatory. 24 25

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(20) On this score it would be useful to set out here the definition of 26 defamation as envisaged by Gatley on “Libel & Slander” 6th Edition at p. 27 4, para 4 as follows : 28 S/N v0OqK7iykim6i5EdroWkA “There is no wholly satisfactory definition of a defamatory imputation. 1 Any imputation which may tend 'to lower the plaintiff in the estimation of 2 right-thinking members of society generally, 'to cut him off from society,' 3 or 'to expose him to hatred, contempt or ridicule,' is defamatory of him. 4 An imputation may be defamatory whether or not it is believed by those 5 to whom it is published.” 6 7 At para 31 p. 14 its stated : 8 9 “A defamatory imputation is one to a man's discredit, or which tends to 10 lower him in the estimation of others, or to expose him to hatred, 11 contempt or ridicule, or to injure his reputation in his office, trade or 12 profession, or to injure his financial credit. The standard of opinion is that 13 of right-thinking persons generally. To be defamatory an imputation 14 need have no actual effect on a person's reputation; the law looks only 15 to its tendency.” 16 17

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(21) The test to be undertaken when determining whether the impugned 18 words complained of are capable of bearing a defamatory meaning has 19 been explained by Gopal Sri Ram in the case of Chok Foo Choo v The 20 China Press Bhd [1999] 1 CLJ 461 where he explained as follows : 21 22 “It cannot, I think, be doubted that the first task of a court in an action for 23 defamation is to determine whether the words complained of are 24 capable of bearing a defamatory meaning. And it is beyond argument 25 that this is in essence a question of law that turns upon the construction 26 of the words published. As Lord Morris puts it in Jones v Skelton [1963] 27 3 All ER at p 958: 28 The ordinary and natural meaning of words may be either the literal 29 meaning or it may be an implied or inferred or an indirect meaning: any 30 meaning that does not require the support of extrinsic facts passing 31 beyond general knowledge but is a meaning which is capable of being 32 S/N v0OqK7iykim6i5EdroWkA detected in the language used can be a part of the ordinary and natural 1 meaning of words (see Lewis v Dily Telegraph Ltd [1963] 2 All ER 151). 2 The ordinary and natural meaning may therefore include any implication 3 or inference which a reasonable reader, guided not by any special but 4 only by general knowledge and not fettered by any strict legal rules of 5 construction, would draw from the words. The test of reasonableness 6 guides and directs the court in its function of deciding whether it is open 7 to a jury in any particular case to hold that reasonable persons would 8 understand the words complained of in a defamatory sense. 9 “In my judgement, the test which is to be applied lies in the question: 10 do the words published in their natural and ordinary meaning impute to 11 the Plaintiff any dishonourable or discreditable conduct or motives or a 12 lack of integrity on his part? If the question invites an affirmative 13 response then the words complained of are defamatory. (see JB 14 Jeyaretnam v Goh Chok Tong [1985] 1 MLJ 334)” 15 16

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(22) In the case of Syed Husin Ali v Sharikat Penchetakan Utusan 17 Melayu Berhad & Anor [1973] 1 LNS 146, the High Court stated : 18 19 “There is no wholly satisfactory definition of a defamatory imputation. 20 Any imputation which may tend “to lower the plaintiff in the estimation of 21 right-thinking members of society generally, “to cut him off from society”, 22 or “to expose him to hatred, contempt or ridicule” is defamatory of him. 23 An imputation may be defamatory whether or not it is believed by those 24 to whom it is published. 25 …. 26 Thus, the test of defamatory nature of a statement is its tendency to 27 excite against the plaintiff the adverse opinion of others, although no one 28 believes the statement to be true. Another test is: would the words tend 29 to lower the plaintiff in the estimation of right thinking members of society 30 generally” the typical type of defamation is an attack upon the moral 31 character of the plaintiff attributing crime, dishonesty, untruthfulness, 32 ingratitude or cruelty.” 33 S/N v0OqK7iykim6i5EdroWkA

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(23) In Bre Sdn Bhd & Ors v Tun Datuk Patinggi Hj Abdul Rahman 1 Ya’kub [2005] 2 CLJ 645 the Court of Appeal held as follows : 2 3 "[10] In coming to his findings we are of the opinion that the learned 4 judge had adopted the correct test i.e. whether the words complained of 5 were calculated to expose the plaintiff to hatred, ridicule or contempt in 6 the mind of a reasonable man or would tend to lower the plaintiff in the 7 estimation of right thinking members of society generally." 8 9

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(24) Therefore, in this case it is incumbent to determine whether the 10 words used by the Defendant in the Facebook postings against the 11 Plaintiff, in their natural and ordinary meaning impute to him any 12 dishonourable or discreditable conduct or motive or a lack of integrity? 13 Does it tend to lower the Plaintiff in the estimation of right thinking 14 members of the society generally, or cut him off from society or expose 15 him to hatred, contempt or ridicule and/or to cause him to be shunned or 16 avoided? 17 18

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(25) Having said that it must be borne in mind too that it will be sufficient 19 for the Plaintiff to show the tendency of the words being defamatory even 20 though the words did not really lower the Plaintiff in the estimation of those 21 to whom the words were published (see Tun Datuk Patinggi Haji Abdul 22 Rahman Ya’kub v Bre Sdn Bhd & Ors (supra). 23 24

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(26) In the instant case the Plaintiff has alleged that the alleged 25 Facebook postings published by the Defendant, if read in their ordinary 26 and natural meaning were defamatory and damaged his reputation. The 27 Plaintiff further contended that the said words bear the natural and 28 ordinary meaning that the Plaintiff was a worthless, unreliable, corrupt, 29 S/N v0OqK7iykim6i5EdroWkA dishonest and untrustworthy person, lawyer and businessman. It bore the 1 meaning that the Plaintiff was an unfit and improper person to practise in 2 his profession as a lawyer or an entrepreneur, that all he did was to cheat 3 her from the start. 4 5

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(27) Looking at the postings in its entirety together with the screenshot 6 of the WhatsApp message as a whole, it is my decision that the postings 7 are defamatory as it invites contempt and odium against the Plaintiff in the 8 mind of whoever reads the postings. It invited the perception that the 9 Plaintiff was dishonourable and lacked integrity. It was an attack upon his 10 moral character attributing dishonestly and untruthfulness. I am of the 11 view the Defendant used the words that were calculated to expose the 12 Plaintiff to hatred, ridicule or contempt in the mind of any reasonable 13 person and/or it brought to mind a tendency to lower the Plaintiff in the 14 estimation of right thinking members of society in general. 15 16

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(28) In looking at the postings in its entirety I find that the Plaintiff has 17 shown on a balance of probabilities the tendency of the words being 18 defamatory. I kept in view the decision of Richard Malanjum J (as he then 19 was) in the case of Tun Datuk Patinggi Haji Abdul-Rahman Ya’kub 20 (supra) where he held that “words could still be defamatory even if they did not 21 really lower a plaintiff in the estimation of those to whom they were published. The law 22 looks only to its tendency…”. 23 24

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(29) In the present case, as specifically pleaded by the Plaintiff in the 25 Statement of Claim, the relevant excerpts which are alleged to defamatory 26 to the Plaintiff are these : 27 28 “Dr awal lg kau dh menipu…” 29 S/N v0OqK7iykim6i5EdroWkA “tgk cara lawyer yg tau undang-undang bila bercakap..” 1 “..nk saman lawyer jahanam ni..mg tgh tggu dia merayu-rayu..” 2 “..ko lawyer x yh acah-acah nk ugut aku, nk saman aku bagai…” 3 “Aku xkn ada rasa hormat lg kt ko…aku xkan lari k..x mcm ko” 4 5

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(30) The words used by the Defendant were such that it created an 6 impression that the Plaintiff is a dishonest lawyer and a cheat. It was a 7 conscious and deliberate intention to use those defamatory words in order 8 to grab the attention of the reader. In my view the postings created an 9 effect of contempt and odium against the Plaintiff even without the reader 10 having to read the WhatsApp messages in full. 11 12

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(31) It was the contention of the Defendant that the act of posting the 13 alleged defamatory statements in the Facebook post was only an attempt 14 to communicate or to reach the Plaintiff who did not respond to her earlier 15 messages to him. According to the Defendant this was the only way she 16 and her husband could think of to coerce the Plaintiff to unblock their 17 number and get in touch with him. The Defendant also stated that true 18 enough her strategy to upload to her Facebook page was successful 19 because the Plaintiff did indeed unblock their number and got in touch 20 with them. 21 22

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(32) I have given due consideration to the explanation offered by the 23 Defendant. On this issue I would opine that the subjective intention of the 24 Defendant is irrelevant for the purposes of determining whether the said 25 statements in the Facebook postings are defamatory of the Plaintiff. 26 Nevertheless and with respect I am unable to accept the explanation given 27 by the Defendant. I am of the view that it was a most unreasonable and 28 disingenious explanation. I find no merit in the Defendant’s rationalization 29 S/N v0OqK7iykim6i5EdroWkA that she did no harm and merely wanted the Plaintiff to reply to her 1 messages. There are many other ways to contact the Plaintiff without 2 having to resort to hurling defamatory statements of the individual 3 concerned in order to attract his attention. 4 5

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(33) I find all the words used are clear statements and allegations of 6 dishonesty, lack of integrity and I would add, even imputation of a criminal 7 conduct against the Plaintiff. I find that any reasonable person when 8 reading the statements in the Facebook posing would have understood 9 that the person referred to is an untrustworthy, dishonest and deceitful 10 person carrying out his business while hiding behind his legal profession; 11 that any person, even in today’s society where people have become 12 increasingly hardened to slanderous statements would definitely 13 understand the words used by the Defendant in a defamatory way against 14 the Plaintiff. 15 16

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(34) As such I find that the Plaintiff had successfully shown that the 17 statements in the Facebook postings are defamatory to the Plaintiff. 18 19 Whether the words or Statements in the Facebook postings 20 complained of refer to the Plaintiff 21

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(35) Counsel for the Defendant has contended that the statements in the 22 Facebook postings do not mention the name of the Plaintiff and any third 23 party who reads the impugned statements would not know the statements 24 were referring to the Plaintiff. It was contended that where the Plaintiff is 25 not named, the test to be applied would be whether the words would 26 reasonably lead people acquainted with the Plaintiff to the conclusion that 27 the Plaintiff is the person referred to. 28 S/N v0OqK7iykim6i5EdroWkA

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(36) To support that contention counsel for the Defendant referred to the 1 rather recent case of Synergy Promenade Sdn Bhd v Datuk Seri Haji 2 Razali [2021] MLRAU 150 where the Court of Appeal held inter alia as 3 follows :- 4 5 “[34] More importantly, we agreed with the learned HCJ that the 6 Impugned Statements in its entirety and construed objectively in their 7 natural and ordinary meaning do not even refer to the plaintiff. Learned 8 counsel for the plaintiff however submitted that the defendant’s Press 9 Statements referred to the plaintiff in the context of the statement 10 namely, ‘Bila kita gagal melakukan tadbir urus yang baik ini yang 11 berlaku. Sebab FELDA, FIC dan juga ‘pihak syarikat’. It was the 12 contention of the plaintiff that the reference to ‘pihak syarikat’ could only 13 mean synergy and no other entity. It was also contended that there was 14 no other company that was mentioned by the defendant at the Press 15 Conference. It is interesting to note that according to the plaintiff, at the 16 said Press Conference, Tan Sri Shahrir had spoken first where Tan Sri 17 Shahrir explicitly mentioned ‘Synergy’ by name, namely Syarikat 18 Synergy promenade yang diberikan PA’. The plaintiff had filed a suit in 19 defamation against Tan Sri Shahrir based on the Press Statements 20 issued by him [emphasis added]. 21 [35] In our view, the plaintiff’s case is premised on the Impugned 22 Statements allegedly made by the defendant during the Press 23 Statement. In this regard the court would only construe in its entirety 24 whether there was any reference made to the plaintiff by the defendant 25 notwithstanding that both the defendant and Tan Sri Shahrir were 26 present at the Press Statement. The defendant was never asked to 27 clarify or explain whom he meant by the reference to the word ‘syarikat’. 28 It could not be assumed that the word ‘syarikat’ referred to the plaintiff. 29 In fact the plaintiff named themselves in the pleading as ‘Synergy 30 Promenade Sdn Bhd’ and not as ‘Syarikat Synergy Promenade Sdn 31 Bhd’. It was also too late in the circumstances of this case for the plaintiff 32 to orally seek to amend the Statement of Claim. 33 S/N v0OqK7iykim6i5EdroWkA

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(37) The facts in the above case and in the present case are 1 distinguishable. Having considered the peculiar facts and circumstances 2 found in Synergy Promenade (supra) and in comparison with the instant 3 case before me, I was of the view that the situation and facts relied on by 4 the Defendant are not at all in nature similar and therefore I am of the view 5 that it would be erroneous to apply the facts of that case to this instant 6 case. 7 8

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(38) It ought to be noted that firstly, in this case the profile photograph of 9 the Plaintiff was uploaded juxtaposed with the impugned statements. 10 There is a clear photograph of the Plaintiff accompanying the postings. 11 Secondly and very crucially, the name of the Plaintiff is clearly stated there 12 as ‘Zhafri Aminurashid’. How could it then be not a reference at all to the 13 Plaintiff even if his name is not mentioned in the impugned statements. 14 15

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(39) Having given my utmost consideration to the matter, I can 16 unhesitatingly say that it is clear without a doubt that the impugned 17 statements in the Facebook postings must refer to the person shown in 18 the photograph. The name underneath the photograph belongs to the 19 Plaintiff. The necessary imputation would be that the person in the 20 photograph is the person about whom the impugned statements are 21 about. Hence there could be no doubt that the impugned statements are 22 in reference to the Plaintiff. 23 24

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(40) It is worth noting that at this point in time all that is required of the 25 Plaintiff is to establish that the words were such that they would 26 reasonably lead persons acquainted with the Plaintiff to believe that it 27 referred to him. 28 S/N v0OqK7iykim6i5EdroWkA

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(41) This reasoning is consistent with the principles known as the 1 Knupffer test as laid down in the Privy Council case of Knupffer v London 2 Express Newspaper Limited [1944] 1 All ER 495 where it was held as 3 follows : 4 5 “It is an essential element of the cause of action for defamation that the 6 words complained of should be published “of the plaintiff”, where he is 7 not named the test of this is whether the words would reasonably 8 lead people acquainted with him to the conclusion that he was the 9 person referred to. The question whether they did so in fact does not 10 arise if they cannot in law be regarded as capable of referring to him.” 11 12

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(42) I am respectfully of the opinion the test mentioned in the case above 13 when applied to the facts and circumstances of here would bring forth only 14 one conclusion i.e. that the words in the Facebook postings would 15 reasonably lead people acquainted with the Plaintiff to the conclusion that 16 he was the person referred to. Any remaining doubt would have vanished 17 upon reference to the attached photograph and the name below it. The 18 only reasonable conclusion to be arrived at when the Facebook postings 19 are viewed as a whole would be that it referred to none other than the 20 Plaintiff. It contained sufficient particulars to lead any person reading them 21 to believe that it referred to the Plaintiff and no one else. Thus there was 22 in my view a clear and positive identification of the Plaintiff as the person 23 referred to in the impugned Facebook postings. 24 25

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(43) More so here where alongside the photograph of the Plaintiff is 26 written the name “Zhafri Aminurashid” which is the Plaintiff’s name. 27 28 29 30 S/N v0OqK7iykim6i5EdroWkA

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(44) In any event the matter is put to rest by the admission of the 1 Defendant under cross-examination that she was referring to the Plaintiff 2 in those postings. 3 4 Whether the words were published to a third party 5

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(45) In this case the statements made by the Defendant were published 6 in her Facebook account. The postings received reactions from other 7 users. This therefore proves that the defamatory statements were 8 published by the Defendant. The Defendant has admitted that those 9 postings in her Facebook page were uploaded onto her Facebook page. 10 She has further admitted that the impugned Facebook postings are still 11 there andhave not been deleted until todate. I therefore find that the 12 Plaintiff has proven that the defamatory statements were published to third 13 parties. 14 15

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(46) Based on the foregoing reasons, I am satisfied and I make the 16 finding of fact that the Plaintiff had successfully established all of the 17 elements of the tort of defamation. 18 19

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(47) On this score the burden will have shifted to the Defendant to prove 20 her defence. 21 22 Defence of Justification 23

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(48) One of the defences relied on by the Defendant is the defence of 24 justification. If successfully proven the defence of justification is a 25 complete defence to a defamation action (see Syarikat Bekalan Air 26 Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 8 CLJ 477). 27 28 S/N v0OqK7iykim6i5EdroWkA

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(49) The defence of justification is provided for in section 8 of the 1 Defamation Act 1957 and it reads as follows : 2 3 “Section 8 Justification 4 In an action for libel or slander in respect of words containing two or 5 more distinct charges against the plaintiff, a defence of justification shall 6 not fail by reason only that the truth of every charge is not proved if the 7 words not proved to be true do not materially injure the plaintiff’s 8 reputation having regard to the truth of the remaining charges.” 9 10

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(50) To establish a plea of justification, the Defendant must establish the 11 following matters. She must prove that (i) the defamatory imputation is 12 true, (ii) that it justifies the precise imputation complained of and finally (iii) 13 prove the truth of all the material statements in the libel. 14 15

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(51) I quote with appreciation the decision in of the Court of Appeal in 16 Raja Syahrir Abu Bakar & Anor v Manjeet Singh Dhillon & Other 17 Appeals [2019] 1 CLJ 301 where Mary Lim JCA (as Her Ladyship was) 18 stated : 19 20 “[54] First, the defence of justification, a complete defence if the 21 defendants can establish that the defamatory words are true in 22 substance and in fact. Such defence however, has to be specifically 23 pleaded with full and clear particulars of the facts and matters relied on. 24 In considering this defence, s. 8 of the Defamation Act 1957, where it is 25 relied on, as is the case here, must be taken into account. Section 8 26 provides that a defendant who is unable to prove the truth of all the 27 material statements in the alleged libel may nevertheless succeed in the 28 defence of justification where the defendant can show that the words not 29 proved to be true or truthful do not materially injure the plaintiff’s 30 S/N v0OqK7iykim6i5EdroWkA reputation. It is the truth of the imputations of the overall statements and 1 not the truth of every word that is material.” 2 3

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(52) In the instant case, counsel for the Defendant has contended that 4 the Defendant has proven the statements complained of are in fact and 5 substance true. It was contended that the posting of the statements relate 6 to the fact of the failure of the Plaintiff who had pursuant to the Sale and 7 Purchase Agreement promised to supply and deliver 40 pallets of gula 8 prai to G Bersatu. In tandem with that G Bersatu had paid a deposit of 9 RM80,000 to the Plaintiff. Yet the Plaintiff had failed to fulfil his end of the 10 agreement when only 18 pallets of gula prai was delivered. It was further 11 contended that the Plaintiff’s company failed to deliver the remaining 12 pallets and/or the equivalent refund of the balance amount of RM44,000 13 despite repeated reminders and constant follow up from May 2018 until 14 July 2019. Counsel referred to the WhatsApp messages between the 15 Plaintiff and the Defendant to prove the truth of her allegation. 16 17

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(53) My analysis of the documentary and oral evidence led during the 18 trial will reveal that there is no dispute to the fact that there is a Sale and 19 Purchase Agreement (SPA) of gula prai entered into validly between the 20 Plaintiff and the Defendant. For all intent and purpose the SPA dated 21 4.5.2018 governed the business relationship of the parties. A perusal of 22 the SPA however does not reveal the full price of the product, amount 23 purchased nor does it state when delivery is to be effected. Clause 4(a) 24 of the SPA merely states that the buyer shall deposit to the seller the sum 25 of RM80,000 upon signing of the agreement and the balance payment is 26 to be undertaken on the same day as the date of delivery. There is no 27 evidence of how much is the total price of the product. 28 S/N v0OqK7iykim6i5EdroWkA

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(54) As has been shown earlier there does not seem to be any 1 contemporaneous documentary evidence that the balance 22 pallets of 2 the product was supposed to be delivered or that the 22 undelivered 3 pallets are quantified to be in the value of RM44,000.00. 4 5

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(55) The Plaintiff on the other hand has averred that notwithstanding the 6 terms of the SPA the parties had orally agreed that the balance purchase 7 price would be RM43,920,000.00 in order to fix the price of the gula prai 8 at RM2.20 per kg. The Plaintiff further averred that it was also a term of 9 their verbal agreement that G Bersatu would have to agree to purchase a 10 fixed sum of the product per month for a period of 12 months in order to 11 main the price of RM2.20 per kg. 12 13

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(56) The Plaintiff further testified that delivery of the product was to be 14 undertaken by a third party named Mohamed Helmi b Bujang who was 15 fully in charge of sale and purchase of the product to G Bersatu. 16 17

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(57) It is the Plaintiff’s stand that a third party was responsible for delivery 18 of the gula prai to G Bersatu. He identified the third party as an individual 19 named Mohamed Helmi. The Plaintiff claimed that Mohamed Helmi had 20 defaulted in delivering the gula prai to G Bersatu. As a result of Mohd 21 Helmi’s failure to deliver the gula prai the Plaintiff was saddled with the 22 liability not to mention the unrelenting pursuit to refund the claim by the 23 Defendant. 24 25

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(58) Mohamed Helmi is not an illusory person as the Defendant and her 26 husband SD 2 agreed that they knew of the role of Mohamed Helmi in the 27 agreement. 28 S/N v0OqK7iykim6i5EdroWkA

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(59) The witness SP 2 who I consider to be an independent witness also 1 referred to Mohamed Helmi as the person who was responsible for 2 delivering the gula prai to G Bersatu. In his evidence SP 2 testified to the 3 following : 4 5 “Sebelum Plaintif dan syarikat suami Defendan menandatangi 6 Perjanjian Jual Beli gula prai tersebut, saya juga turut serta dalam 7 perbincangan itu di mana perjanjian asal adalah syarikat suami 8 Defendant hendaklah membayar wang deposit sebanyak 9 RM44,000.000.00 bagi tujuan untuk menetapkan harga jualan gula prai 10 sebanyak RM2.20 bagi setiap kg gula. Namun dari perbincangan 11 tersebut yang dihadiri di antara Plaintiff, saya, Helmi dan suami 12 Defendan, wakil syarikat suami Defendan meminta agar membenarkan 13 pihak mereka untuk membayar RM80,000.00 dan baki bayaran wang 14 deposit akan diselesaikan setelah penghantaran gula yang pertama.” 15 16

Subsection

(60) He also explained that Mohamed Helmi had breached the contract 17 and defaulted in delivering the balance of the gula prai as promised. He 18 said : 19 20 “Apa yang difahamkan Helmi telah melakukan perbuatan khianat 21 apabila dia gagalkan untuk membekalkan baki gula seperti yang 22 dijanjikan, ini telah menyebabkan syarikat Plaintiff menjadi kambing 23 hitam apabila Helmi melarikan diri dan enggan bertanggungjawab bagi 24 menyelesaikan baki penghantaran gula mahupun pemulangan baki 25 wang deposit yang telah dibayar. 26 27

Subsection

(61) It is pertinent to note that the Defendant herself agreed in her 28 testimony that the Plaintiff was not the person responsible for the default 29 in the delivery of the balance of the gula prai. 30 S/N v0OqK7iykim6i5EdroWkA

Subsection

(62) The following was the response of the Defendant when questioned 1 by counsel for Plaintiff as follows : 2 3 “Ok, alright sekejap ye. Ok Puan masih pada whatsapp yang sama 4 masih pada whatsapp yang sama bawah sikit tu je yang 10:23:11 am, 5 Puan cakap kalua nak bagi company senyap kejar Helmi untuk settle 6 kan RM5000.00 sebulan dan bulan-bulan seterusnya pandailah saya 7 cakap kat mereka mereka ni kalua Tuan bantu saya saya akan bantu 8 Tuan, setuju tak saya cadangkan bahawa Plaintiff sebenarnya adalah 9 mangsa keadaan sebab kalua tengok daripada whatsapp ni Puan takde 10 pulak suruh Plaintiff bayar, Puan suruh kejar Helmi untuk settlekan 11 RM5000.00 untuk bulan ni dan bulan-bulan seterusnya pandailah saya 12 cakap kat mereka nanti kalau Tuan bantu saya saya akan bantu Tuan.” 13 14 The Defendant’s answer very significantly was this : 15 16 “Sebab dia saya akan suruh dia pergi tuntut dengan Helmi walau macam 17 mana cara pun.” 18 19

Subsection

(63) The Defendant has conceded that the person responsible for the 20 default in delivery of the gula prai was Mohamed Helmi and not the 21 Plaintiff. This is significant as this proved that there was no truth at all to 22 the allegations made by the Defendant that it was the Plaintiff who was 23 responsible for the default in delivery of the gula prai. Since this has not 24 been established, it followed that the defence of justification cannot be 25 relied on. 26 27

Subsection

(64) As highlighted in the case of Dato Seri Mohammad Nizar b 28 Jamaluddin v Sistem Televisyen Malaysia Bhd & Anor [2014] 4 MLJ 29 242 where the Court of Appeal emphasized the following - 30 S/N v0OqK7iykim6i5EdroWkA “Again, perhaps we should go back to what in essence is required to be 1 established by a defendant who is desirous of putting up a defence of 2 justification in facing up a defamation suit. In relying on the defence of 3 justification the burden of proof is on the defendant to prove that the 4 allegations made are true or are substantially true. The defendant must 5 prove it on a balance of probabilities, that is, the allegation is more likely 6 than not to be true.” 7 8

Subsection

(65) In view of the evidence before this Court I am of the opinion that the 9 Defendant has failed to prove the truth of the defamatory postings on a 10 balance of probabilities. Therefore, justification as a defence is rejected. 11 12 Fair Comment?

Subsection

(66) The defence of fair comment is provided for in section 9 of the 14 Defamation Act : 15 16 "In an action for libel or slander in respect of words consisting partly of 17 allegations of fact and partly of expression of opinion, a defence of fair 18 comment shall not fail by reason only that the truth of every allegation of 19 fact is not proved if the expression of opinion is fair comment having 20 regard to such of the facts alleged or referred to in the words complained 21 of as are proved." 22 23 The defence of fair comment is well explained in the case of Tun Datuk 24 Patinggi Hj Abdul Rahman Ya’kub (supra) as follows : 25 26 “For the defence of fair comment, in order to succeed the following basic 27 elements must be established by the defendants, namely 28

Subsection

(67) Having perused the Statement of Defence I find myself in agreement 13 with counsel for Plaintiff’s argument that the Defendant had failed to 14 comply with the statutory requirement under Order 78 rule 3 of the Rules 15 of Court 2012. I agree that the Defendant has failed to appropriately 16 particularize and demarcate which portion of the impugned Facebook 17 postings were facts, and which portion of the same were merely 18 comments. As a whole I find the Defendant’s pleaded defence under fair 19 comment is brief and not substantial enough from that which is statutorily 20 required. The Defendant’s defence merely stated that the words 21 complained of are fair comment made in good faith and without malice. It 22 was also pleaded that the Defendant’s comment was fair because the 23 Plaintiff had failed to either deliver the balance 22 pallets of gula prai or 24 refund the sum of RM40,000 back to the Defendant. In my view the above 25 pleading undeniably failed to distinguish and detail out which part of the 26 impugned Facebook postings are facts and which part is an opinion or a 27 comment. 28 29 30 S/N v0OqK7iykim6i5EdroWkA

Subsection

(68) Taking note now of the decision of Tun Datuk Patinggi Hj Abdul 1 Rahman Ya’kub (supra) the Defendant has contended that in the instant 2 case the facts are clear and denote the truth in that the Plaintiff as the 3 director of Syarikat Rufeikh Resources Sdn bhd and Syarikat G Bersatu 4 Sdn Bhd had indeed entered into a sale and purchase transaction of gula 5 prai and that payment of RM80,000.00 had been made by G Bersatu to 6 the Plaintiff and/or his company. However, it was contended that the 7 Plaintiff had only delivered 18 pallets of gula prai and did not send the 8 balance of the products. Furthermore, it was contended that the Plaintiff 9 had agreed to settle via a refund payment with an equivalent amount i.e. 10 RM44,000.00. It was contended that the Plaintiff had failed to make the 11 refunds. 12 13

Subsection

(69) As rightly highlighted by counsel for the Plaintiff, the Sale and 14 Purchase Agreement relied upon by the Defendant for the comments she 15 made to be fair makes no mention that the Plaintiff had the obligation to 16 deliver 40 pallets of gula prai. If the agreement is perused one will quickly 17 realize that the main precondition referred to was for the Defendant to pay 18 a deposit of RM80,000 in order for the gula perai to be sold at the price of 19 RM2.20 per kilogram. Nowhere does it state that the payment is for the 20 price of 40 pallets. 21 22

Subsection

(70) The Plaintiff’s evidence on this issue will clarify the matter : 23 24 Peguam Plaintif: Seterusnya saya nak rujuk kepada B1, B1, pada 25 mukasurat 10 hingga 20. Peguam Defendan ada 26 bertanyakan mengenai terma dan syarat di 27 dalam perjanjian jual beli ini dan juga merujuk 28 kepada Perenggan 9 pada pernyataan saksi 29 Encik Zhafri dan mengatakan bahawa amaun 44 30 S/N v0OqK7iykim6i5EdroWkA juta itu sebenarnya tidak pernah disebut di 1 dalam perjanjian jual beli tersebut. Boleh Encik 2 Zhafri sahkan berkenaan isu ini? 3 4 : Ya memang tidak dijelaskan secara nyata dalam 5 perjanjian ini tetapi jumlah penuh pembayaran 6 yang perlu dibuat untuk 20 ribu tan metric 7 adalah berjumlah bakinya adalah 43 juta 8 tersebut. 9 10 Peguam Plaintif : Baik. Dan dalam masa yang sama di dalam 11 perjanjian ini juga tidak menyatakan bahawa 12 berapa specific amount tan yang perlu 13 dibekalkan kepada syarikat suami Defendan. 14 Betul? 15 16 : Ya. Saya nak jelaskan berkenaan dengan 17 pembayaran deposit. Pembayaran deposit 18 tersebut dibuat sebagai pembayaran 19 pendahuluan di mana untuk kami bekalkan gula 20 dengan harga RM2.20 untuk satu kilo tetapi 21 saya tidak saya tidak tahu ataupun daripada 22 mana datangnya 40 pallet saya perlu serahkan 23 kerana kalau dikirakan 40 pallet tersebut jumlah 24 bayaran tersebut adalah tidak mencukupi. 25 26 Peguam Plaintif : Dan dalam agreement itself pun tak ada dalam 27 terma dan syarat pun taka da ya? 28 29 : Ini adalah perbincangan selepas kami 30 menandatangani dokumen Encik Helmi dan 31 Encik Suhaimi wakil daripada G Bersatu telah 32 bersetuju antara lainnya untuk membayar 33 deposit tapi perkara itu tidak berlaku. 34 S/N v0OqK7iykim6i5EdroWkA

Subsection

(71) I note that the Defendant has failed to corroborate her evidence that 1 there was an agreement to deliver 40 pallets of gula prai at the price of 2 RM80,000.00. Both the Defendant and SD 2 have claimed that there was 3 a verbal agreement on this matter however no evidence has been brought 4 forth to verify this averment. The Defendant relied on SD 2 for support to 5 corroborate her statement on that score. Other than their verbal 6 assertions, there is not a shred of contemporaneous documentary 7 evidence to prove these assertions. The Court will view the evidence of 8 SD 2 with much caution as he is the husband of the Defendant and will 9 certainly give evidence in order to back her claims. Without documentary 10 evidence I am reluctant to accept the oral evidence especially when there 11 is a written contract entered into voluntarily and willingly by the parties. I 12 find that this document does not support the bare averments of SD 2 or 13 the Defendant. 14 15

Subsection

(72) It is trite law that when the court is faced with conflicting versions, 16 the right approach to take would be to test the entirety of evidence against 17 the probabilities of the case and then decided which of the two versions is 18 more probable. 19 20

Subsection

(73) In Tindok Besar Estate Sdn Bhd v Tinjar Co. [1979 1 LNS 119, 21 his Lordship Chang Min Tat FJ said at pg 234 that: 22 23 “For myself, I would with respect feel somewhat safer to refer to and rely 24 on the acts and deeds of a witness which are contemporaneous with the 25 event and to draw the reasonable inferences from them than to believe 26 his subsequent recollection or version of it, particularly if he is a witness 27 with a purpose of his own to serve and if it did not account for the 28 statements in his documents and writings. Judicial reception of 29 evidence requires that the oral evidence be critically tested against 30 S/N v0OqK7iykim6i5EdroWkA the whole of the other evidence and the circumstances of the case. 1 Plausibility should never be mistaken for veracity.” 2 (emphasis added) 3 4

Subsection

(74) Therefore there cannot be any truth in the Defendant’s insistence 5 that the Plaintiff had agreed to deliver 40 pallets of gula prai to G Bersatu. 6 7

Subsection

(75) In the case of Datuk Seri Anwar b Ibrahim v Utusan Melayu (M) 8 Bhd & Anor [2013] 3 MLJ 534 it was held that the facts relied on must 9 be proven in order to give room for the plea of fair comment. If the 10 Defendant fails to show this, then that statement will be found to be untrue 11 and thus the defence of fair comment shall fail. The Court opined as 12 follows : 13 14 “[50] “Fair comment” cannot justify a defamatory statement which is 15 untrue in fact. “A fair comment cannot be fair which is build upon facts 16 which are not truly stated.” (Herschell LC in Davis v Shepstone (1886) 17 11 AC 187 at p 190). In order to give room for the pela of “fair comment”, 18 the facts must be truly stated. If the facts upon wh cih the comment or a 19 statement of fact purported to have been made do not exist, the 20 foundation of the pela fails. Comment must not convey imputations of 21 an evil fact except so far as the facts truly stated warrant the imputations. 22 (Lord Fletcher Moultan LJ in Hunt v the Star Newspaper Co. Ltd [1908] 23 2 KB 309 at p 319). A publisher of defamatory statement can only be 24 protected if he shows that he had taken all reasonable precaution and 25 then had a reasonable grounded belief in the truth of the statement. The 26 plea of “good faith” implies the making of a genuine effort to reach truth 27 and a mere belief in the truth, without there being a reasonable ground 28 for such a plea is not synonymous with good faith as unnecessary 29 aspersion is indicative of want of good faith (Arnold v King Emperor AIR 30 1914 AC 644). On the factual matrix of the present case, the defendants 31 have failed to establish the defence of “fair comment” as required by law 32 S/N v0OqK7iykim6i5EdroWkA and the defence of “fair comment” is not open to the defendants and 1 cannot be sustained (Joynt v Cylce Trade Publishing Co [1904] 2 KB 2 292.” 3 4

Subsection

(76) In this case it is exceedingly obvious that the Defendant has failed 5 to lead cogent evidence to succeed in the defence of fair comment. 6 7

Subsection

(77) In relation to this it would be also pertinent to refer to the Facebook 8 postings. It is glaringly clear no where in the Facebook postings has the 9 Defendant referenced her grievances and/or allegations against the 10 Plaintiff towards G Bersatu. The Defendant’s statements were a personal 11 lambast of the Plaintiff in his profession as a lawyer and did not refer to 12 her grievances in regard to the non delivery of the balance of the goods 13 purchased. 14 15

Subsection

(78) In furtherance of the above, it is to be noted that the conversation in 16 the WhatsApp messages also refer to Helmi as the person who is 17 responsible for the delay in delivery of the gula prai. It will be seen from 18 the conversation that the Defendant appeared to have accepted that the 19 delay is caused by Helmi and not the Defendant. In the conversation the 20 Defendant has urged the Plaintiff to fulfil the terms of the contract and to 21 hasten the delivery of the remaining bags of gula prai. 22 23

Subsection

(79) I refer to the telephone messages between the Plaintiff and the 24 Defendant on 23.8.2018(p. 38 BOD) where the Defendant requested for 25 updates about Helmi. 26 27 28 29 S/N v0OqK7iykim6i5EdroWkA

Subsection

(80) Thus it is exceedingly obvious that Helmi is not an imaginary or 1 shadowy character but is the person who is responsible for the delivery of 2 the gula prai to G Bersatu. 3 4

Subsection

(81) To make matters worse in the WhatsApp messages there are 5 reference to the Defendant and her husband having met with Helmi to 6 settle the matter. Some of the excerpts are reproduced below here : 7 8 9 S/N v0OqK7iykim6i5EdroWkA

Subsection

(82) Therefore I am of the view the defence of fair comment is not an 1 available defence as the Plaintiff has consistently communicated to the 2 Defendant that he was not the person responsible for the delay or the 3 issues faced by the Defendant. From her replies to the Plaintiff’s 4 messages the Defendant had knowledge that Helmi was a key figure who 5 had caused the delay in delivery of the gula prai to the Defendant. By that 6 same token it showed that the Defendant knew that the Plaintiff had told 7 her that the fault lay at Helmi. It is thus quite obvious that the Defendant 8 knew and accepted that the Defendant was not responsible for the default 9 in the delivery of the gula prai. 10 11

Subsection

(83) Another key point that is not in the favour of the Defendant would be 12 that the Defendant had consistently pressed the Plaintiff for payment or 13 refund and if he did not she would report the matter to the Bar Council. 14 The WhatsApp messages accompanying the impugned Facebook 15 postings show that the Defendant stating that G Bersatu will file a 16 complaint to the Bar Council for the Plaintiff’s dishonesty as a lawyer. The 17 Defendant has however failed to substantiate with any evidence of having 18 lodged any report to the Bar Council. As such in light of the above findings 19 the defence of fair comment has not been proven on a balance of 20 probabilities. 21 22 Damages 23

Subsection

(84) As for damages in a defamation suit, the law is clear that the Plaintiff 24 need not plead or prove actual damage if the claim is for general 25 damages. (see MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun & 26 Other Appeals [1995] 2 CLJ 912). 27 28 S/N v0OqK7iykim6i5EdroWkA

Subsection

(85) It is trite that in a defamation suit, ‘the law presumes that some 1 damages will flow in the ordinary course of things from the mere invasion 2 of his absolute right of reputation’ (see Dato Seri Mohammad Nizar 3 Jamaluddin v Sistem Televisyen Malaysia & Anor (supra)). 4 5

Subsection

(86) In determining the appropriate award for damages the court usually 6 would consider (1) the position and standing of the Plaintiff, (2) the gravity 7 and seriousness of the defamatory statement, (3) the mode and extent of 8 the publication and also the mental distress, hurt and anguish caused to 9 the Plaintiff as a result of the defamation. Another important factor would 10 be the conduct of the Defendant from the time the defamatory statement 11 was issued to the moment of verdict. (see Raub Australian Gold Mining 12 Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 1 LNS 62.) 13 14

Subsection

(87) Here in the instant case, I note that the Defendant has not offered 15 any apology for her actions nor has she taken down the impugned 16 Facebook postings even after being served with the legal notice by the 17 Plaintiff. This to me is a factor which increases the damages to be 18 awarded. 19 20

Subsection

(88) After considering and weighing the various factors and comparing 21 damages awarded in other decisions reported, I was of the view that a 22 global sum of RM60,000 as general and exemplary damages is 23 reasonable in the circumstances to vindicate the Plaintiff. I do not think 24 the Plaintiff was too adversely affected by the Facebook postings nor has 25 his career as a solicitor suffered. It would not be wrong to conclude that 26 only a minimum number of readers were interested in the Defendant’s 27 Facebook postings. 28 S/N v0OqK7iykim6i5EdroWkA

Subsection

(89) For all the reasons given, I am of the view that the award of 1 RM60,000 is fair and appropriate in the circumstances. I also grant an 2 injunction against repetition of the defamatory statements and an order 3 that the Defendant publish an apology to the Plaintiff. 4 5

Subsection

(90) Costs of this proceedings are to be paid by the Defendant to the 6 Plaintiff. 7 8 Dated 5 August 2022. 9 10 11 12 (JULIE LACK) 13 Judge 14 High Court of Malaya 15 Shah Alam, Selangor Darul Ehsan 16 17 18 19 20 21 Counsel 22 For the Plaintiff : 23 Noorhafidzah Binti Abd Rahim 24 (MESSRS. MIRA SHAM, YOUNG & CONNIE NG) 25 26 For the Defendant : 27 Hussin Bin Mohd Razak 28 (MESSRS. MOHD IRWAN MOHD MUBARAK) 29 S/N v0OqK7iykim6i5EdroWkA